The Rights of War and Peace

by Hugo Grotius

XV. Another question is, whether the acceptance alone of a promise is sufficient, or whether it ought to be communicated to the promiser before it can be made binding.

It is certain that a promise may be made two ways, either upon condition of its being fulfilled, if accepted, or upon condition of its being ratified, if the promiser is apprised of its being accepted. And in cases of mutual obligation, it is presumed to be taken in the latter sense; but it is better to take promises that are purely gratuitous in the former sense, unless there be evidence to the contrary.

XVI. From hence it follows, that a promise may be revoked, without the imputation of injustice or levity, BEFORE ACCEPTANCE, as no right has yet been conveyed; especially if ACCEPTANCE were made the condition of its being fulfilled. It may be revoked too if the party to whom it was made, should die before acceptance. Because it is evident that the power to accept it or not, was conferred upon HIM, and not upon his HEIRS. For to give a man a right, which may POSSIBLY descend to his heirs, is one thing, and to express an intention of giving it to his heirs is another. For it makes an essential difference upon what person the favour is conferred. This is understood in the answer made by Neratius, who said, that he did not believe the prince would have granted to one who was dead, what he granted, supposing him still alive.

XVII. A promise may be revoked, by the death of the person appointed to communicate to a third the intention of the promiser. Because the obligation to the third person rested upon such communication. The case is different, where a public messenger is employed, who is not himself the obligatory instrument, but only the means through which it is conveyed. Therefore letters indicating a promise, or consent may be conveyed by any one. Yet there is a distinction to be made between a minister appointed to communicate a promise, and one appointed to make the promise in his own name.

For in the former case, a revocation will be valid, even though it has not been made known to the minister employed; but in the latter case, it will be entirely void, because the right of promising was committed to the minister, and fully depended upon his will; therefore the obligation of the promise was complete, as he knew of no intended revocation. So also in the former case, where a second person is commissioned to communicate the intentions of a donor to a third; even if the donor should die, the acceptance of the gift will be deemed valid, all that was requisite being performed on one part; though till that period the intention was revocable, as is evident in the case of bequests. But in the other case, where a person has received a full commission to execute a promise during the LIFE of the donor, should the donor die before the execution of it, and the person employed be apprised of his death; the commission, the promise, and the acceptance of it will then, at once, become void.

In doubtful cases, it is reasonable to suppose that it was the intention of the promiser, that the commission which he gave should be executed, unless some great change, as for instance, his own death should occur. Yet reasons in favour of a contrary opinion may easily be found and admitted, especially with respect to pious donations, which, at all events, ought to stand good. And in the same manner may be decided the long disputed question, whether an action on account of such a bequest could be brought against the heir. Upon which the author of the second book to Herennius says, that Marcus Drusus the praetor decided one way, and Sextus Julius another.

XVIII. The acceptance of a promise for a third person is a matter subject to discussion, in which there is a distinction to be observed between a promise made to a person of a thing, which is to be given to another, and a promise made directly to the person himself, on whom the former is to be conferred. If a promise is made to any one, where his own personal interest is not concerned, a consideration introduced by the Roman law, by acceptance he seems naturally to acquire a right which may be transferred to another for HIS acceptance, and this right will pass so fully, that in the mean time the promise cannot be revoked by the person who gave, though it may be released by him who received it. For that is a meaning by no means repugnant to the law of nature, and it is entirely conformable to the words of such a promise; nor can it be a matter of indifference to the person, through whom another is to receive a benefit.

But if a promise is made directly to one, on whom a thing is to be conferred, a distinction must be made, whether the person receiving such a promise has SPECIAL commission for acceptance, or one so GENERAL as to include acceptance, or has it not. When a commission has been previously given, no farther distinction is necessary, whether the person be free or not, a condition which the Roman laws require. But it is plain that from such an acceptance, let the condition of the person be what it will, the promise is complete: because consent may be given and signified through the medium of another. For a person is supposed to have fully intended, what he has put into the power of another to accept or refuse.

Where there is no such commission, if another, to whom the promise was not directly made, accepts it with the consent of the promiser, the promise will be so far binding, that the promiser will not be at liberty to revoke it, before the person, in whose favour it was made has ratified, and afterwards chosen to release the engagement. Yet, in the mean time, the accepter cannot release it, as having derived no peculiar right from it himself, but only been used as an instrument in promoting the kind intentions and good faith of the promiser. The promiser therefore himself, by revoking it, is not doing violence to the perfect right of another, but only acting in contradiction his own good faith.

XIX. From what has been said before, it is easy to conceive what opinion ought to be entertained of a burdensome condition annexed to a promise. For it may be annexed at any time, till a promise has been completed by acceptance, or an irrevocable pledge to fulfil it has been given. But the condition of a burden annexed to a favour intended to be conferred upon a third person, through the medium of any one, may be revoked before the person has confirmed it by his acceptance. On this point there is great difference of opinion. But upon impartial consideration the natural equity of any case may be easily seen without any great length of arguments.